2004-289473
. DOC # .004-0289473
.
APR 06. 2004 4:23 PM
Recording Requested By: ) OFFICIft REcœJJS
?b ) ~ DIEGO CIltITV RECffiDER'S OFFICE
City Engineer ) GREGœV J. SMITH, WJjTV REŒm:R
) FEES: 30.00
~ f When Recorded Mail to: )
City Clerk )
~tYOfEnCinitas )
5 South Vulcan Avenue )
(ø' ncinitas. CA 92024 ) SPACE ABOVE FOR RECORDER'S USE ONLY
/1
t..\yY! ,O~ PRIVATE STORM WATER TREATMENT
b'<:¡ MAINTENANCE AGREEMENT
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ssessor's Parcel No. 256-340-11.20.29.3 Project No.: 02-259 CDP
W.O.No. 1365-G
THIS AGREEMENT for the periodic maintenance and repair of that certain private storm water
treatment facilities, the legal description and/or plat of which is set forth in Exhibits attached
hereto and made a part hereof, is entered into by YMCA OF SAN DIEGO COUNTY (formerly
YOUNG MEN'S CHRISTIAN ASSOCIATION OF SAN DIEGO AND SAN DIEGO
COUNTY»
(Hereinafter referred to as "Developer") for the benefit of future owners who will use the private
storm water treatment facilities (hereinafter referred to as " owners", which shall include the
Developer to the extent the Developer retains any ownership interest in any land covered by this
agreement.
WHEREAS, this Agreement is required as a condition of approval by the City of Encinitas,
and
WHEREAS, Developer is the owner of certain real property and developed as Attachment
"A" that will use and enjoy the benefit of said storm water treatment facilities(s). A complete
legal description and/or plat of said real property to be maintained is attached, and labelled
Attachment "B", and incorporated by reference. Said real property is hereinafter referred to as
the "property"; and
WHEREAS, it is the desire of the Developer that said private storm water treatment system
be maintained in a safe and usable condition by the owners; and
. .
WHEREAS, it is the desire of the Developer to establish a method for the periodic
maintenance and repair of said private storm water treatment facilities and for the apportionment
of the expense of such maintenance and repair among existing and future owners; and
WHEREAS, there exists a benefit to the public if the private storm water facilities be
adequately maintained on a regular and periodic basis; and
WHEREAS, it is the intention of the Developer that this Agreement constitute a covenant
running with the land, binding upon each successive owner of all or any portion of the property.
NOW THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. The property is benefited by this Agreement, and present and successive owners
of all or any portion of the property are expressly bound hereby for the benefit of the land.
2. The cost and expense of maintaining the private storm water treatment facilities
shall be paid by the owner of the heirs, assigns and successors in interest or each such owner.
3. In the event any of the herein described parcels of land are subdivided further, the
owners, heirs, assigns and successors in interest of each such newly created parcel shall be liable
nnder this Agreement for their then pro rata share of expenses and such pro rata shares of
expenses shall be computed to reflect such newly created parcels.
4. The repairs and maintenance to be performed under this Agreement shall be
limited to the following: reasonable and improvements and maintenance work to adequately
maintain said private storm water treatment facilities to permit access to said facilities. Repairs
and maintenance under this Agreement shall include, but is not limited to, repairing access
roadbeds, repairing and maintaining drainage structures, removing debris, if any, and other work
reasonably necessary and proper to repair and preserve the private storm water treatment
facilities for their intended purposes. Adequate maintenance of said drainage facilities shall be
conducted at a minimum of every six months.
5. If there is a covenant, agreement, or other obligation imposed as a condition of the
development, the obligation to repair and maintain the private storm water treatment facilities as
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herein set forth shall commence when improvements have been completed and approved by the
City.
6. Any extraordinary repair required to correct damage to said storm water treatment
facilities that results from action taken or contracted for by the owners or their sucèessors in
interest shall be paid for by the party taking action or party contracting for work which caused the
necessity for the extraordinary repair. The repair shall be such as to restore the storm water
treatment facilities to the condition existing prior to said damage.
7. Any liability of the owners for personal injury to an agent hereunder, or to any
worker employed to make repairs or provide maintenance under this Agreement, or to third
persons, as well as any liability of the owners for damage to the property, by agents of the owner,
or any such 'Yorker, or of any third persons, as a result of or arising out of repairs and
maintenance under this Agreement, shall be borne, by the owners as they bear the costs and
expenses of such repairs and maintenance. Owners shall be responsible for and maintain their
own insurance, if any. By this Agreement, the Developer does not intend to provide for the
sharing of liability with respect to personal injury or property damage other than that attributable
to the repairs and maintenance undertaken under this Agreement.
8. Owners shall jointly and severally defend and indemnifY and hold harmless City,
City's engineer and its consultants and each of its officials, directors, officers, agents and
employees from and against all liability, claims, damages, losses, expenses, personal injury and
other costs, including costs of defense and attorney's fees, to the agent hereunder or to any owner,
any contractor, any subcontractor, any user of the storm water treatment facilities, or to any other
third persons arising out of or in any way related to the use of, repair or maintenance of, or the
failure to repair or maintain the private storm water treatment facilities.
9. Nothing in the Agreement, the specifications or other contract documents or City's
approval of the plans and specifications or inspection ofthe work is intended to include a review,
inspection acknowledgement of a responsibility for any such matter, and City, City's engineer
and its consultants, and each of its officials, directors, officers, employees and agents, shall have
no responsibility or liability therefore.
10. The foregoing covenants shall run with the land and shall be deemed to be
for the benefit of the land of the owners and each and every person who shall at anytime
own all or any portion of the property referred to herein.
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11. It is understood and agreed that the covenants herein contained shall be binding on
the heirs, executors, administrators, successors, and assignees of each of the owners.
12. It is the purpose of the signatories hereto that this instrument be recorded to the
end and intent that the obligation hereby created shall be and constitute a covenant running with
the land and any subsequent purchaser of all or any portion thereof, by acceptance of delivery of
a deed and/or conveyance regardless of form, shall be deemed to have consented to and become
bound by these presents, including without limitation, the right of any person entitled to enforce
the terms of this Agreement to institute legal action as provided in Paragraph 8 hereof, such
remedy to be cumulative and in addition to other remedies provided in this Agreement and to all
other remedies at law or in equity.
13. The terms of this Agreement may be amended in writing upon majority approval
ofthe owners and consent of the City.
14. This Agreement shall be governed by the laws of the State of California. In the
event that any of the provisions of this Agreement are held to be unenforceable or invalid by any
court of competent jurisdiction, the validity, and enforceability of the remaining provisions shall
not be affected thereby.
15. If the Property constitutes a "Common Interest Development" as defined in
California Civil Code Section 1351(c) which will include membership in or ownership of an
"Association" as defined in California Civil Code Section 135 I (a), anything in this Agreement to
the contrary notwithstanding, the following provisions shall apply at and during such time as (i)
the Property is encumbered by a "Declaration" (as defined in California Civil Code Section
1351(h), and (ii) the Common Area of the property (including the private storm water treatment
facilities) is managed and controlled by an Association:
(a) The Association, through its Board of Directors, shall repair and maintain the
private storm water treatment facilities and shall be deemed the "agent" as referred to in
Paragraph 7 above. The Association, which shall not be replaced except by amendment to the
Declaration, shall receive no compensation for performing such duties. The costs of such
maintenance and repair shall be assessed against each owner and his subdivision interest in the
Property pursuant to the Declaration. The assessments shall be deposited in the Association's
corporate account.
(b) The provisions in the Declaration which provide for assessment liens in favor of
the Association and enforcement thereof shall supersede Paragraph 8 of the Agreement in its
entirety. No individual owners shall have the right to alter, maintain or repair any of the
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Common Area (as defined in California Civil Code Section 1351(b) in the Property except as
may be allowed by the Declaration.
(c) This Agreement shall not be interpreted in any manner, which reduces or limits
the Association's rights and duties following its Bylaws and Declaration.
IN WITNESS WHEREOF, the parties have executed this Agreement
This 'ZS 1-... day of çe e.CZú~", , 2004.
,
Developer: YMC~ San Diego CoUlÍlty
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Name¡f¡£':.tr~ 4. (ð<.-L--/f'fO
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A £..:'1-)./ ~ p ,ç:.~y
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Signature of DEVELOPER must be notarized. Attach the appropriate acknowledgement.
Accepted by D
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State of California
County of San Diego
On February 25, 2004 before me, Carol E. Latimer, Notary Public,
personally appeared Richard A. Collato and Alan R. Perry
personally known to me (w p~"eEi t8 !Be 8ft tHe bll8is MSlltisfaetol') ".;d\.u~ to
be the person(s) whose name(s) isl'are subscribed to the within instrument and
acknowledged to me that hefflRe/they executed the same in ØisIftep/their authorized
capacity(ies), and that by ftisther/their signature( s) on the instrument the
person( s), or the entity upon behalf of which the person( s) acted, executed
the instrument.
CAROl E.LATIMER
Commls,íon 111370036
NaIIty Public . CIHf0mi8
s.n Diego COU!>lY
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Carol E. Latimer
My commission expires September 12, 2006
OPTIONAL
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED
DOCUMENT
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Individual "'"C"'w\4! '" VV\~\,,"T"4!"""c.. Co Nt"
..JL Corporate Officer :s Title or Type of Document
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Title(s) «:.e.c...e.""",..V ~
Number of Pages
Signer is Representing: ,.:J\i't
Date of Document
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SÍgners (other than named above)
02/20/04 14: 30 FAX 1 760 944 9329 MAGDALENA ECKE YMCA JaJOll
.,,' . .
ATTACHMENT 'A'
'-' THAT PORTION OF THE SOUTHWEST QUARTER OF THE SOUTHWEST QUARTER OF
SECTION 10, TOWNSHIP 13 SOUTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN, IN THE
COUNTY OF SAN DIEGO, STATE OF CAliFORNIA, ACCORDING TO OFFICIAL PLAT
THEREOF, DESCRIBED AS FOLLOWS;
BEGINNING AT THE SOUTHEAST CORNER OF SAID SOUTHWEST QUARTER OF THE
SOlJTHWEST QUARTER; THENCE ALONG THE SOlJTH LINE THEREOF, SOUTH 89" 49' 30'
WEST (RECORD NORTH 89" 32' 26" EAST) 493.86 FEET TO THE EASTERLY LINE OF THE
LAND DESCRIBED IN DEED TO THE STATE OF CAlIFORNIA, RECORDED AUGUST 3D, 1962
AS DOCUMENT NO. 149821 OF OFACIAL RECORDS; THENCE ALONG SAID EASTERLY LINE
NORTH 18° 13' 02' WEST (RECORD NORTH 170 34' 58' WEST) 407.97 FEET; THENCE
PARALLEL WITH SAID SOUTH LINE NORTH 89° 49' 30" EAST 629.07 FEET TO THE EAST
LINE OF SAID SOUTHWEST QUARTER OF THE SOUTHWEST QUARTER; THENCE SOUTH
01° 08' 00" WEST 388.02 FEET TO THE POINT OF BEGINNING.
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02120/04 14: 31 FAX 1 760 944 9329 MAGDALENA ECKE YMCA ~O13
A "ACHMENT '8'
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